23-0815_RIVER STREET MARKETPLACE, LLC_Agenda Report_E7City of San Juan Capistrano
Agenda Report
TO: Honorable Mayor and Members of the City Council
FROM: Benjamin Siegel, City Manager
SUBMITTED BY: Thomas Toman, Public Works Director
PREPARED BY: Joe Parco, City Engineer
Jeremy Hohnbaum, Senior Civil Engineer
DATE: August 15, 2023
SUBJECT: License Agreement with Whittier and Sorensen LLC (River Street
Marketplace Project) for Construction and Maintenance of
Improvements on Public Property (APNs 649-201-02 and 649-201-
03); and, Finding Said Action is Categorically Exempt from the
California Environmental Quality Act Pursuant to State CEQA
Guidelines, Section 15301
RECOMMENDATION:
1.Approve and authorize the City Manager to execute a License Agreement with
Whittier and Sorensen LLC for the improvement and maintenance of landscape,
irrigation, and water quality Best Management Practices (BMPs) associated with
the River Street Marketplace Project located on public property that serves as
public right-of-way on Paseo Adelanto;
2.Direct the City Clerk to record the Landscape Maintenance Agreement with the
County of Orange; and,
3.Find that the recommended action is categorically exempt from the California
Environmental Quality Act (CEQA) pursuant to State CEQA Guidelines, Section
15301.
EXECUTIVE SUMMARY:
The applicant, Whittier and Sorensen LLC, is seeking approval to install and maintain
landscape, irrigation, hardscape and water quality improvements within City-owned
parcels along Paseo Adelanto. The area is adjacent to the River Street Marketplace
8/15/2023
E7
City Council Agenda Report
August 15, 2023
Page 2 of 3
Project, located at 31825 Los Rios Street, which is scheduled to open in Fall 2023. A
location map with an overview of the proposed enhancements is included as Attachment
1. The applicant’s intent is to enhance the aesthetic appearance of the parkway,
improving the frontage, as well as installing water quality improvements to meet
regulatory requirements related to the River Street development. The proposed
improvements would be maintained by the applicant under the proposed License
Agreement (Attachment 2). Additionally, any existing utilities would be protected in place
and maintained by the respective owner. The locations for the proposed improvements
are shown in Exhibit A of Attachment 2.
DISCUSSION/ANALYSIS:
The River Street Marketplace Project consists of an approximately 5.86-acre mixed-use
development to be located at 31825 Los Rios Street. The grading permit application and
street improvement plans included landscape and hardscape improvements both on the
private property portion of the project within 31825 Los Rios Street, as well as adjacent
to the private property on the City-owned parcels along Paseo Adelanto. To allow the
applicant to construct and maintain the proposed improvements on City property, the City
must approve a License Agreement (Attachment 2) that details the various maintenance
obligations, such as debris and litter removal, watering and trimming of vegetation, weed
removal, trimming trees, and maintenance of water quality improvements.
FISCAL IMPACT:
The Public Works Department is currently responsible for the landscape maintenance in
this area. Pending approval of the proposed License Agreement, the applicant would
become the responsible party for that maintenance. As a result, the City would
experience minor cost savings with respect to irrigation, landscape and tree trimming
maintenance. Additionally, the applicant would be required to provide general liability
insurance and name the City as an additional insured on an annual basis.
ENVIRONMENTAL IMPACT:
In accordance with the California Environmental Quality Act (CEQA), the recommended
action would be exempt from CEQA, per Section 15301, Class 1 (h), Maintenance of
Existing Landscape. Here, the entire project, including the proposed License Agreement,
is exempt per Section 15301 because it involves maintenance of existing landscaped
areas. Establishing a maintenance agreement with Whittier and Sorensen LLC to
maintain improvements within the public right-of-way, previously reviewed and approved
through Code Amendment (CA) 16-003 (Final Environmental Impact Report (SCH
#2018011019)), is categorically exempt from CEQA.
City Council Agenda Report
August 15, 2023
Page 3 of 3
PRIOR CITY COUNCIL REVIEW:
• On October 15, 2019, the City Council adopted a Resolution (19-10-15-01)
Certifying the Final Environmental Impact Report, Adopting the Mitigation
Monitoring Reporting Program, Approving General Plan Amendment (GPA) 18-
002 and Approving Flood Plain Land Use Permit (FP) 16-003. The City Council
also adopted Ordinance No. 1071 Approving Code Amendment (CA) 16-003; and
Ordinance No. 1072 Approving Development Agreement (DA) 18-002 (Assessor
Parcel Numbers 121-160-22, 28, 49).
COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS:
• On September 24, 2019, the Planning Commission considered the modified
project plans and adopted two Resolutions recommending that the City Council
certify the Final Environmental Impact Report (FEIR), adopt the Mitigation
Monitoring Reporting Program, a code amendment, and approve an Architectural
Control, Grading Plan Modification, and Sign Program.
NOTIFICATION:
Dan Almquist, 31791 Los Rios Street LLC
Douglas Dumhart, 3-D Advisors, LLC
Interested Parties Notification List
ATTACHMENT(S):
Attachment 1: Project Location Map
Attachment 2: Proposed License Agreement
92 feet
ATTACHMENT 1
PAGE 1 OF 2
License Area Overview and Loca�on
Improvements within the public right of way consist of:
•Hardscape Concrete Sidewalks (Adjacent to Paseo Adelanto Shaded in Gray Below)
•New Asphalt Concrete Street Paving (Within Paseo Adelanto)
•Landscape and Irriga�on (Within the Green Areas Below)
Na�ve landscape within the green areas above is being constructed per the landscape plans. Examples
are shown in the images below and consist of:
•California Sycamore and Mesa and Coast Live Oak Trees
•A variety of Ornamental Grasses and Shrubs
ATTACHMENT 1
PAGE 2 OF 2
Page 1 of 12
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: City Clerk
EXEMPT FROM RECORDING FEES
(Government Code §§6103 & 27383)
APN: 649-201-03 Space Above Line for Recorder’s Use Only
LICENSE AGREEMENT FOR
CERTAIN PERMITTED ACTIVITIES
ON PUBLIC PROPERTY
THIS LICENSE AGREEMENT (this "Agreement") is made and entered into this __
day of __________, 2023 (the “Effective Date”), by and between the CITY OF SAN JUAN
CAPISTRANO, a California municipal corporation ("City”), and RIVER STREET
MARKETPLACE LLC, a California limited liability company (the “Licensee”). Each party
to the License is at times referred to individually herein as a “Party” and collectively as
the “Parties.”
W I T N E S S E T H
WHEREAS, City is the owner of that certain property (APN 649-201-03) more
particularly described on Exhibit “A” attached hereto and incorporated by reference herein
(collectively, the “City Property”), which contains the public right-of-way for Paseo
Adelanto and associated landscape improvements located over the easterly portion of
such property; and,
WHEREAS, Licensee has secured the following land use entitlement approvals:
Code Amendment (CA) 16-003; Architectural Control (AC) 16-029; Grading Plan
Modification (GPM) 16-014; and Floodplain Land Use Permit (FP) 16-003 (together, the
“Entitlements”) to construct a commercial center and associated improvements
(hereinafter, the “River Street Marketplace” or the “Project”) on approximately 5.86 acres
(APNs 121-160-22 and 121-160-28) (the “Licensee Property”); and,
WHEREAS, the Entitlements require the Licensee to make Street and Storm
Drainage Improvements known as Street Improvement Plans (SIP 20-003) on that certain
portion of the City Property that is adjacent to the Licensee Property; and,
WHEREAS, the final Street and Drainage Improvements Plans (SIP 20-003) will
result in certain landscape improvements on the City Property as depicted in cross hatch
on Exhibit “B” attached hereto (such portion of the City Property, the “License AREA”);
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and,
WHEREAS, the Entitlements also require Licensee to prepare a Water Quality
Management Plan (“WQMP”) in compliance with the City’s January 31, 2019,
Jurisdictional Runoff Management Plan for City’s implementation of the Regional National
Pollutants Discharge Elimination System Permit (“NPDES Permit”); and,
WHEREAS, the Final Approved WQMP identifies two storm water catch basins
with full trash capture inserts within the street improvements requiring tri-annual
maintenance (every four months) of the full trash capture inserts; and,
WHEREAS, Licensee seeks to enter upon the License AREA for the purpose of
installing and maintaining improvements associated with the River Street Marketplace,
including irrigation, landscaping, hardscape, pay gate, and full trash capture inserts
(hereinafter, “Permitted Activities” and the improvements themselves, the “Improvements”)
as required by the Entitlements and/or shown on Street and Storm Drainage Improvement
Plans (SIP20-003); Precise Grading Plans (B20-0545); Site Improvement Plans (B20-
0546); and Landscape Improvement Plans (B20-0547) collectively (“Permits”), all as further
described in Section 3 below; and,
WHEREAS, City desires to grant Licensee permission to engage in said Permitted
Activities upon the License AREA.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS
AND OBLIGATIONS OF THE PARTIES HEREIN CONTAINED, THE PARTIES ENTER
INTO THIS LICENSE AGREEMENT.
Section 1. Grant of License.
City hereby grants to Licensee an irrevocable right and license to enter upon the
License AREA to conduct the Permitted Activities subject to the conditions set forth in this
Agreement. Such license is intended by the Parties to be permanent but shall not be
deemed to create an easement, lease, or any property interest in the License AREA. In
consideration for such license, Licensee shall be solely responsible for the maintenance,
repair and upkeep of the License AREA at the sole cost of the Licensee.
Section 2. Term of Agreement; Covenant that Runs with the Land.
This Agreement shall take effect upon the Effective Date and shall be recorded in
the Official Records of Orange County. This Agreement shall continue in effect until both
Parties mutually terminate this Agreement in writing and any lender with a security interest
in or encumbrance upon the Licensee Property (hereinafter “Lender” or “Licensee’s
Lender”) joins in such termination. This Agreement shall be a covenant that runs with the
land. If this Agreement is terminated by the mutual written agreement of the Parties and
Lender as required hereunder, Licensee shall have no further obligations to conduct the
Permitted Activities and shall take all actions necessary to turn over all right and title to
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the Improvements to City.
All rights, benefits, licenses, and privileges of every character hereby granted,
created, reserved, or declared, and all impositions and obligations hereby imposed, are
intended to be appurtenant to the Licensee Property as the dominant tenement against
the City Property as the servient tenement, shall be deemed and taken to be covenants
running with the land and equitable servitudes, and shall be binding upon and shall inure
to the benefit of any fee owner, grantee, purchaser, or any person or entity having at any
time any interest or estate in the Licensee Property and the City Property as though the
provisions of this Agreement were recited and stipulated at length in each and every deed
of conveyance, purchase contract or other instrument of transfer, and shall inure to the
benefit of each such owner, grantee, purchaser, occupant, mortgagee, or other person or
entity having at any time any interest or estate in any of the Licensee Property and the
City Property.
Section 3. Permitted Activities.
Licensee is authorized to prepare the License AREA to receive the Improvements
and to install, maintain, and operate the Improvements. Preparation of the License AREA
includes, but is not limited to, clearing for installation of irrigation systems, landscape
material, mulch, and hardscape improvements. On-going operational activities include,
but are not limited to, irrigating, irrigation system repairs, clearing, cleaning, trimming,
pruning, weeding, fertilizing, and replacing plant material as warranted.
Prior to Licensee installing any future improvements that may require the removal
of existing Improvements or are otherwise not explicitly authorized by the Entitlements or
the aforementioned Permits, Licensee shall provide written notice to City of such desire
and City, in its sole discretion, shall determine whether such proposed future
improvement requires an amendment to this Agreement. Licensee shall obtain written
approval from the City prior to implementing or installing any new improvements not
explicitly authorized by the Permits.
In no event shall the Permitted Activities impede or conflict with normal or
emergency maintenance of either the existing City-maintained Street, curb and gutter,
sidewalk, street lights, signage, or the SMWD fire hydrant located within or about the
License AREA (“City-Maintained Improvements”). If any City-Maintained Improvement is
damaged due to the negligence or willful misconduct of Licensee, its agents, employees,
contractors, subcontractors, or licensees, the repair (or cost thereof) of such damage shall
be the responsibility of Licensee.
Licensee shall ensure its installation and/or maintenance activities are compliant
with all State and Federal regulations relating to the use of pesticides and/or herbicides.
Licensee shall ensure appropriate water quality best management practices (BMPs) are
implemented during all installation and/or maintenance operations to mitigate pollutants
from entering the storm drain system.
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Licensor shall not use the License AREA for any purpose that is inconsistent or
conflicts with the Permitted Activities. Licensor shall not grant any right to any person
that is inconsistent or conflicts with the conduct of the Permitted Activities by Licensee in
the License AREA.
Section 4. Compliance with Laws.
Licensee's rights hereunder shall be conditioned upon, and Licensee shall, at its
sole cost and expense, comply with each and every federal, state, and local law,
regulation, standard, court decision, ordinance, rule, code, order, decree, directive,
guideline, permit, and permit condition, together with any declaration of covenants,
conditions, and restrictions that are recorded in any official or public records with respect
to the License AREA or any portion thereof, each as currently existing and as amended,
enacted, issued, or adopted from time to time, that are applicable to the Permitted
Activities to be performed within the License AREA.
Section 5. No Duty to Warn.
City has no duty to inspect the City Property or the License AREA and no duty to
warn Licensee or any person of any other latent or patent defect, condition, or risk that
might be incurred in entering upon the City Property or the License AREA. Licensee
acknowledges that neither City nor any employee, agent, or representative of City has
made representations or warranties concerning the condition of the City Property or the
License AREA. All persons entering the City Property or the License AREA to perform
any activity contemplated by this Agreement, carry out any responsibility required by this
Agreement, or exercise any right conferred under this Agreement do so at his/her/their
own risk.
Section 6. Permits and Approvals; Standard of Work.
Nothing herein shall be construed to give Licensee any approvals normally
required under City’s ordinances or local regulations, and Licensee, at its sole cost and
expense, shall obtain all permits and authorizations required in order to engage in the
Permitted Activities. Licensee shall comply, and shall cause its agents and
representatives to comply, with all laws, codes, rules, regulations, and permits applicable
to the Permitted Activities. All Permitted Activities shall be performed in accordance with
the highest standards and practices in the industry.
Section 7. Failure to Perform.
7.1. Notice of Violation; Licensee’s Obligation to Cure.
7.1.1. Should Licensee violate any provision of this Agreement or fail to
perform under this Agreement in any way, City shall provide Licensee with written notice
describing the violation or failure to perform (“Notice of Violation”).
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7.1.2. Upon receipt of a Notice of Violation, Licensee shall diligently work
to commence the cure of such violation within seven (7) days of effective notice (pursuant
to Section 10 hereof) of the Notice of Violation and shall diligently and in good faith
continue to cure such violation to completion. Lane closures and/or any work performed
outside of the License AREA but in the public right of way will require an encroachment
permit and traffic control measures as needed before performing said work and may result
in additional insurance limits being required at the sole discretion of the City from what is
noted in Section 9 below. Work performed by Licensee within the public right of way shall
only be performed by appropriately licensed contractors. Licensee will be responsible for
100% of the repair costs within the License AREA, including any repair costs within public
property, the public right of way, or adjacent private property that are caused or created
by any acts, omissions, and/or operations undertaken in or about the License AREA by
any Licensee Party (as defined below).
7.1.3. In the event of a violation that requires immediate attention in order
to respond to, protect against, and/or prevent a public health and safety concern and/or
damage to adjacent public or private property or loss of life, or to ensure compliance with
the Multiple Separate Storm Sewer System (MS4) Permit, City will endeavor to notify
Licensee by phone and email, as well as pursuant to Section 10, and Licensee shall
diligently work to commence the cure of such violation within 24 hours of notification by
City and shall diligently and in good faith continue to cure such violation to completion.
7.2. City Performance; Remedy.
7.2.1. If Licensee fails to commence the cure of any violation within the
applicable time periods set forth in Sections 7.1.2 or 7.1.3, or, following the
commencement of any cure efforts, fails to diligently and in good faith continue to cure
such violation to completion per Section 7.1.2 or 7.1.3, then, at Licensee’s sole expense,
City may immediately undertake to perform Licensee’s obligations by providing written
notice to Licensee.
7.2.2. At any time upon or after completion of such work by City, City may
invoice Licensee for the out-of-pocket costs incurred by City to perform such obligations.
City shall submit such invoice together with copies of receipts or other evidence
substantiating the costs incurred by City, but nothing in this section shall obligate City to
provide, nor entitle Licensee to receive, any particular form or type of evidence. Within
thirty (30) days of issuance of such invoice, Licensee shall pay to City the invoice amount
in full.
7.2.3. If Licensee fails to pay City’s invoices per Section 7.2.2, then City
shall have the right but not the obligation to record and enforce a lien or other
encumbrance against the Licensee Property in order to recover its costs; provided,
however, such lien shall in all events be subordinate to the lien priority of any Lender with
a lien or security interest in Licensee Property whether by way of a deed of trust or
mortgage, and upon any foreclosure or deed in lieu of foreclosure by such Lender, such
lien in favor of Licensor shall be extinguished but the personal obligation of Licensee to
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pay the amounts that were secured by the lien shall continue in full force and effect. The
Lender or other party that acquires title by foreclosure or by a deed in lieu of foreclosure
shall not be obligated to cure any breach of this Agreement that is of a type that is not
practical or feasible to cure. The Lender or other party that succeeds to title to the
Licensee Property shall be obligated to pay amounts that are incurred by Licensor during
the time that the Lender or other party holds title to the Licensee Property and the
Licensee Property shall be subject to the lien in favor of Licensor to secure such amounts.
7.2.4 Licensor’s remedies for any breach or violation of this Agreement by
Licensee shall include specific performance, the recovery of damages and the other
remedies specified in this Agreement, including without limitation the right to cure at the
expense of Licensee with a lien against the Licensee Property to secure recovery of the
costs expended; provided, however, Licensor shall in no event have the right to terminate
this Agreement by reason of a breach or violation of this Agreement by Licensee. No
breach or violation of this Agreement by Licensee shall defeat or render invalid the lien of
any Lender pursuant to a deed of trust or mortgage.
7.3 No Waiver.
The failure of City to insist upon strict adherence to any term of this Agreement on
any occasion shall not be considered a waiver of City’s rights nor deprive City of the right
thereafter to insist upon strict adherence to that term or any other term of this Agreement.
Section 8. Indemnification.
8.1. Indemnification of City by Licensee. Licensee shall defend, indemnify, and
hold City, its officials, officers, employees, and agents (the “Indemnified Parties”) free and
harmless from any and all liability from loss, damage, or injury to property or persons,
including wrongful death, in any manner to the extent arising out of or incident to acts,
omissions, and/or operations undertaken in or about the License AREA by Licensee, its
officials, officers, personnel, employees, invitees, licensees, guests, contractors, and/or
subcontractors (as well as Licensee’s contractors’ and/or subcontractors’ officials,
officers, employees, and agents) (each, a “Licensee Party”), including any claims,
damages, injuries, costs, losses, fines, or charges from or attributable to the acts or
omissions of Licensee, its officials, officers, personnel, employees, invitees, guests,
contractors, and/or subcontractors, (as well as Licensee’s contractors’ and/or
subcontractors’ officials, officers, employees, and agents) attributable to any repair,
cleanup, detoxification, removal, closure, or other plan concerning any pollutant,
contaminant, hazardous substance, hazardous waste, household hazardous waste, solid
waste, or other waste Licensee or Licensee’s contractor/subcontractor has generated,
collected, stored, transported, or disposed, in connection with this Agreement . Further,
Licensee shall defend at its own expense, including reasonable attorneys’ fees, the
Indemnified Parties in any legal action to the extent such action arises from such acts,
omissions, and/or operations.
8.2. Licensee’s obligations under this Section 8 shall apply regardless of
whether or not City has prepared, supplied, or approved any plans, activities, or uses
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allowed by this Agreement, and regardless of whether or not any insurance policies shall
have been determined to be applicable to any of such damages or claims for damages.
City does not waive any rights against Licensee that City may have under the
indemnification provision in this Section 8 because of City’s acceptance of any security
deposits or insurance policies.
8.3 Licensee agrees that Licensee’s performance (including the performance
of any Licensee Party) of the Permitted Activities on or about the City Property and the
License AREA shall at all times be at Licensee’s sole and exclusive risk.
8.4. Survival. Licensee’s indemnification obligations in this Section 8 shall
survive the termination of this Agreement.
Section 9. Insurance.
Prior to the commencement of any work pursuant to this Agreement, Licensee (if
performing work itself) or Licensee’s contractors and/or subcontractors shall furnish to
City satisfactory evidence of an insurance policy written upon a form and by a company
(which meets with the approval of City) insuring City, its officials, officers, agents, and
employees against loss or liability which may arise during the performance of Licensee’s
obligations under this Agreement or which may result from any of the work herein required
to be done, including all costs of defending any claim arising as result thereof. For the
avoidance of doubt, any obligation of “Licensee” set forth in this Section 9 may be
performed or satisfied by any contractor of Licensee that performs any work contemplated
in this Agreement, provided the Licensee’s contractor abides by all requirements set forth
in this Agreement.
9.1. Commercial General Liability
9.1.1. Licensee shall take out and maintain, during the performance of all
work under this Agreement, Commercial General Liability Insurance,
in amounts not less than specified herein, and in a form and with
insurance companies rated A- VII or better by AM Best.
9.1.2. Coverage for Commercial General Liability insurance shall be at
least as broad as the following:
9.1.2.1. Insurance Services Office Commercial General Liability
coverage (Occurrence Form CG 00 01) or exact equivalent.
9.1.3. Commercial General Liability Insurance must include coverage for
the following:
a. Bodily Injury and Property Damage
b. Personal Injury/Advertising Injury
c. Premises/Operations Liability
d. Products/Completed Operations Liability
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e. Aggregate Limits
f. Explosion, Collapse and Underground (UCX) exclusion deleted
g. Contractual Liability with respect to this Contract
h. Broad Form Property Damage
9.1.4. The policy shall contain no endorsements or provisions limiting
coverage for (1) contractual liability except the ISO form contractual
language; (2) cross liability exclusion for claims or suits by one
insured against another; or (3) products/completed operations
liability.
9.1.5. The policy shall give City, its officials, officers, employees, and
agents additional insured status using ISO endorsement forms CG
20 10 10 01 and 20 37 10 01, or endorsements providing the exact
same coverage.
9.1.6. The general liability program may utilize either deductibles or provide
coverage excess of a self-insured retention, subject to reasonable
approval by the City, and provided that such deductibles shall not
apply to the City as an additional insured.
9.1. Automobile Liability
9.1.1. To the extent Licensee has employees at any time during the term of
this Agreement, at all times during the performance of the work under
this Agreement, the Licensee shall maintain Automobile Liability
Insurance for bodily injury and property damage including coverage
for owned, non-owned and hired vehicles, in a form and with
insurance companies rated A- VII or better by AM Best.
9.1.2. Coverage for automobile liability insurance shall be at least as broad
as Insurance Services Office Form Number CA 00 01 covering
automobile liability (Coverage Symbol 1, any auto).
9.1.3. The policy shall give the City, its officials, officers, employees, and
agents additional insured status.
9.1.4. Subject to reasonable approval by the City, the automobile liability
insurance policy may require deductibles (but not a self-insured
retention), provided that such deductibles shall not apply to the City
as an additional insured. Automobile liability limits shall be increased
at the sole discretion of the City when lane closures are required for
traffic control.
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9.2. Workers’ Compensation/Employer’s Liability
9.2.1. Licensee certifies that he/she is aware of the provisions of Section
3700 of the California Labor Code which requires every employer to
be insured against liability for workers’ compensation or to undertake
self-insurance in accordance with the provisions of that code, and
he/she will comply with such provisions before commencing work
under this Agreement.
9.2.2. To the extent Licensee has employees at any time during the term of
this Agreement, at all times during the performance of the work under
this Agreement, the Licensee shall maintain full compensation
insurance for all persons employed directly by him/her to carry out
the work contemplated under this Agreement, all in accordance with
the “Workers’ Compensation and Insurance Act,” Division IV of the
Labor Code of the State of California and any acts amendatory
thereof, and Employer’s Liability Coverage in amounts indicated
herein. Licensee shall require all subconsultants/subcontractors to
obtain and maintain, for the period required by this Agreement,
workers’ compensation coverage of the same type and limits as
specified in this section.
9.3. Minimum Policy Limits Required
9.3.1. The following insurance limits (which may be achieved through a
combination of general liability and umbrella insurance policies) are
required for the Agreement:
Commercial General Liability $2,000,000 per occurrence/ $4,000,000
aggregate for bodily injury, personal injury, and property damage.
Automobile Liability $1,000,000 combined single limit
Employer’s Liability $1,000,000 per accident or disease
Worker’s Compensation Statutory Limit
9.3.2. Defense costs shall be payable in addition to any limits.
9.3.3. Requirements of specific coverage or limits contained in this section
are not intended as a limitation on coverage, limits, or other
requirement, or a waiver of any coverage normally provided by any
insurance. Any available coverage shall be provided to the parties
required to be named as Additional Insured pursuant to this
Agreement.
9.4. Evidence Required
Prior to execution of the Agreement, the Licensee shall file with the City evidence
of insurance from an insurer or insurers certifying to the coverage of all insurance
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required herein. Such evidence shall include original copies of the ISO CG 00 01
(or insurer’s equivalent) signed by the insurer’s representative and Certificate of
Insurance (Acord Form 25-S or equivalent), together with required endorsements.
All evidence of insurance shall be signed by a properly authorized officer, agent,
or qualified representative of the insurer and shall certify the names of the insured,
any additional insureds, where appropriate, the type and amount of the insurance,
the location and operations to which the insurance applies, and the expiration date
of such insurance.
9.5. Policy Provisions Required
9.5.1. Licensee shall provide the City at least thirty (30) days prior written
notice of cancellation of any policy required by this Agreement,
except that the Licensee shall provide at least ten (10) days prior
written notice of cancellation of any such policy due to non-payment
of premium. If any of the required coverage is cancelled or expires
during the term of this Agreement, the Licensee shall deliver renewal
certificate(s) including the General Liability Additional Insured
Endorsement to the City at least ten (10) days prior to the effective
date of cancellation or expiration.
9.5.2. The Commercial General Liability Policy and Automobile Policy (if
applicable) shall contain a provision stating that Licensee’s policy is
primary insurance and that any insurance, self-insurance or other
coverage maintained by the City or any named insureds shall not be
called upon to contribute to any loss.
9.5.3. The retroactive date (if any) of each policy is to be no later than the
effective date of this Agreement. Licensee shall maintain such
coverage continuously until the later of (i) Licensee’s sale or transfer
of the Licensee Property or (ii) the date that is three (3) years after
the initial installation of the Improvements. Licensee shall purchase
a one (1) year extended reporting period A) if the retroactive date is
advanced past the effective date of this Agreement; B) if the policy is
cancelled or not renewed; or C) if the policy is replaced by another
claims-made policy with a retroactive date subsequent to the
effective date of this Agreement.
9.5.4. Worker’s compensation insurance coverages shall contain or be
endorsed to waiver of subrogation in favor of the City, its officials,
officers, employees, agents, or shall specifically allow Licensee or
others providing insurance evidence in compliance with these
specifications to waive their right of recovery prior to a loss. Licensee
hereby waives its own right of recovery against City and shall require
similar written express waivers and insurance clauses from each of
its subconsultants/subcontractor.
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9.5.5. The limits set forth herein shall apply separately to each insured
against whom claims are made or suits are brought, except with
respect to the limits of liability. Further the limits set forth herein shall
not be construed to relieve the Licensee from liability in excess of
such coverage, nor shall it limit the Licensee’s indemnification
obligations to the City and shall not preclude the City from taking
such other actions available to the City under other provisions of the
Agreement or law.
9.6. Qualifying Insurers
9.6.1. All policies required shall be issued by acceptable insurance
companies, as reasonably determined by the City, which satisfy the
following minimum requirements:
Each such policy shall be from a company or companies with a
current A.M. Best's rating of no less than A:VII and admitted to
transact in the business of insurance in the State of California, or
otherwise allowed to place insurance through surplus line brokers
under applicable provisions of the California Insurance Code or any
federal law.
9.7. Additional Insurance Provisions
9.7.1. The foregoing requirements as to the types and limits of insurance
coverage to be maintained by Licensee, and any approval of said
insurance by the City, is not intended to and shall not in any manner
limit or qualify the liabilities and obligations otherwise assumed by
the Licensee pursuant to this Agreement, including but not limited to,
the provisions concerning indemnification.
9.7.2. If at any time during the life of the Agreement, any policy of insurance
required under this Agreement does not comply with these
specifications or is canceled and not replaced, City has the right but
not the duty to obtain the insurance it deems necessary and any
premium paid by City will be promptly reimbursed by Licensee or City
will withhold amounts sufficient to pay premium from Licensee
payments. In the alternative, City may cancel this Agreement.
9.7.3. The City requires evidence that the Licensee and their
Subcontractors have insurance policies in effect throughout the
duration of the Project, and the City is named as an additional
insured.
9.7.4. Neither the City nor any of its officials, officers, employees, or agents
shall be personally responsible for any liability arising under or by
virtue of this Agreement.
Page 12 of 12
9.8. Contractor/Subcontractor Insurance Requirements.
Licensee shall not allow any contractor, subcontractor, consultant, or sub-
consultant to commence work in connection with the Agreement or any contractor
or subcontract entered into by Licensee pursuant thereto unless and until such
person(s) and/or entity(ies) have provided evidence satisfactory to the City that
they have secured all insurance required under this section. Policies of commercial
general liability insurance provided by such subcontractors or subconsultants shall
be endorsed to name the City as an additional insured using ISO form CG 20 38
04 13 or an endorsement providing the exact same coverage. If requested in
writing by Licensee, the City may, but is in no way obligated to, approve in writing
different scopes or minimum limits of insurance for particular (sub)contractors or
(sub)consultants.
Such policies shall be in favor of Licensee or its contractors and of the City, its
officials, officers, agents, and employees and shall be maintained in full force and
effect during the life of this Agreement, including any extensions thereto. Said
policies shall state by their terms and by accompanying endorsements that they
shall not be canceled until City shall have had at least thirty (30) days' notice in
writing of such cancellation.
Section 10. Notices.
Any notices required to be given under this Agreement shall be sent to the following
Parties by either U.S. first-class mail postage prepaid or via email as follows and shall be
deemed effective three (3) business days after deposit into the U.S. mail or on the date
of email delivery so long as the sender does not receive a “bounced email” auto-reply:
To LICENSOR:
City of San Juan Capistrano
Attn: City Clerk’s Office
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
E-mail: mmorris@sanjuancapistrano.org
To LICENSEE:
RIVER STREET MARKETPLACE LLC
Attn: Dan Almquist, Manager
31791 Los Rios Street
San Juan Capistrano, CA 92675
E-mail: Dan@Almquist.com
If Licensee provides Licensor with the name and address of Licensee’s Lender, then
Licensor covenants and agrees to concurrently provide such Lender with a copy of any
notice given to Licensee. Licensee’s Lender shall have the right to cure any default by
Licensee but shall in no event be obligated to do so. In the event any Lender elects to
cure a Licensee default hereunder, such Lender shall be given the same cure rights as
afforded to Licensee from and after Licensor delivers a written notice of default to such
Lender in order to cure the applicable default.
Section 11. Entire Agreement.
Page 13 of 12
This Agreement sets forth the entire understanding of the Parties with respect to
the subject matter hereof and supersedes all prior discussions, negotiations,
understandings or agreements relating thereto.
Section 12. No Oral Modification.
No alteration or variation of this Agreement shall be valid or binding unless made
in writing and signed by the Parties hereto.
Section 13. Successors and Assigns.
The rights and obligations of Licensee under this Agreement shall be binding upon
and inure to the benefit of the successor owners of the Licensee Property, including by
way of example and not by limitation any Lender that takes title to the Licensee Property
through foreclosure or deed in lieu of foreclosure or any third-party purchaser at a
foreclosure. Licensee may grant a security interest in its rights under this Agreement to
any Lender that provides financing for the Licensee Property. This Agreement shall in no
event be transferable separately from the Licensee Property. Licensee and any
successor owner of the Licensee Property shall be liable for all obligations of such party
under this Agreement arising during the period such party owned the Licensee Property,
and no transfer or conveyance of the Licensee Property shall release such party from its
liability for such obligations; provided, however, such party shall have no liability for
matters arising after it ceases to own the Licensee Property.
Section 14. Governing Law & Venue.
This Agreement shall be construed in accordance with and governed by the laws
of the State of California. Venue shall be proper in Orange County.
Section 15. Authority.
Each signatory hereto warrants to the other Party that it has authority to execute
this Agreement on behalf of the Party for whom it purports to sign. This Agreement may
be executed in counterparts and when fully executed all such counterparts together shall
be deemed to be one and the same instrument.
Section 16. Estoppel Certificates.
Each Party shall, upon written request from any other Party or a Lender, which
request shall quote this Section, execute to the requesting party a written statement in
reasonable form as may be proposed by the requesting party (an “Estoppel Certificate”)
certifying (i) whether or not this Agreement is modified and whether or not this Agreement
is in full force and effect (or, if there have been modifications, stating those modifications),
(ii) whether or not, to its actual knowledge, the requesting Party has failed to perform an
obligation under this Agreement, and if so, the nature of the failure, and (iii) such other
matters as may be reasonably requested by the requesting Party or Lender. No Party
Page 14 of 12
shall be obligated to respond to a request to execute an Estoppel Certificate that attempts
to modify any of the terms or conditions of this Agreement. An Estoppel Certificate
executed by a Party may be relied upon by the other Party(ies) or any transferee or
Lender of a Party to which such Estoppel Certificate is addressed so as to estop the Party
executing the Estoppel Certificate from asserting the contrary.
###
[Signatures on following page]
Page 15 of 12
IN WITNESS WHEREOF, the Parties have executed this License Agreement as
of the date above first written.
Attest:
__________________________
Maria Morris, City Clerk
LICENSOR:
CITY OF SAN JUAN CAPISTRANO
a California municipal corporation
_____________________________
Benjamin Siegel, City Manager
Approved as to Legal Form:
BEST BEST & KRIEGER LLP
________________________
Jeffrey S. Ballinger, City Attorney
LICENSEE:
RIVER STREET MARKETPLACE LLC
a California limited liability company
___________________________
Dan M. Almquist, Manager
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
)
COUNTY OF )
On ________ __, 2023, before me, ____________________________________,
a Notary Public, personally appeared ______________________________________, who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature ______________________________
(SEAL)
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
)
COUNTY OF )
On ________ __, 2023, before me, ____________________________________,
a Notary Public, personally appeared ______________________________________, who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature ______________________________
(SEAL)
Exhibit “A”
City Property
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF ORANGE,
STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
APN: 649-201-03:
THAT PORTION OF LOT 11 IN BLOCK 2, AND OF LOT 3 IN BLOCK 3 OF THE TOWNSITE
OF SAN JUAN CAPISTRANO AS SHOWN ON A MAP RECORDED IN BOOK 3, PAGES 120
TO 125 INCLUSIVE OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY,
CALIFORNIA, AND IN THAT PORTION OF RIVER STREET (NOW KNOWN AS ALIPAZ
STREET) ADJOINING SAID LOTS 11 AND 3, AS VACATED AND ABANDONED BY ORDER
OF THE BOARD OF SUPERVISORS OF ORANGE COUNTY, CALIFORNIA, DATED MAY 11,
1948, A CERTIFIED COPY OF WHICH WAS RECORDED MAY 15, 1948 IN BOOK 1637, PAGE
220 OFFICIAL RECORDS AND RE-RECORDED MAY 21, 1948 IN BOOK 1640, PAGE 545
OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE
COUNTY, LYING EASTERLY OF THE FOLLOWING DESCRIBED LINE:
BEGINNING AT A POINT IN THE CENTERLINE OF DEL OBISPO STREET AS DESCRIBED
IN THE DEED TO THE COUNTY OF ORANGE RECORDED DECEMBER 9, 1943 IN BOOK
1224, PAGE 177 OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID ORANGE COUNTY, DISTANT THEREON NORTH 82°34'19" EAST 393.48 FEET FROM
THE INTERSECTION OF SAID CENTERLINE WITH THE CENTERLINE OF ALIPAZ STREET;
THENCE, FROM SAID POINT OF BEGINNING NORTH 7°25'42" WEST 174.21 FEET TO THE
BEGINNING OF A TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF
550.00 FEET; THENCE, THROUGH A CENTRAL ANGLE OF 5°22'13" ALONG SAID CURVE,
NORTHERLY 51.55 FEET; THENCE, TANGENT TO SAID CURVE NORTH 12°47'55" WEST
404.96 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHWESTERLY
AND HAVING A RADIUS OF 1,500 FEET; THENCE, ALONG SAID CURVE,
NORTHWESTERLY TO A POINT IN THE NORTHERLY LINE OF SAID LOT 11; THENCE,
ALONG SAID NORTHERLY LINE, WESTERLY 15 FEET TO THE BEGINNING OF A NON-
TANGENT CURVE, CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF 1,485.00 FEET
AND CONCENTRIC WITH SAID 1,500-FOOT RADIUS CURVE, SAID POINT BEING THE
TRUE POINT OF BEGINNING; THENCE, ALONG SAID CURVE, SOUTHEASTERLY TO THE
RADIAL THROUGH THE BEGINNING OF SAID 1,500-FOOT RADIUS CURVE WHICH BEARS
NORTH 77°12'05" EAST; THENCE, TANGENT TO SAID 1,485-FOOT RADIUS CURVE
SOUTH 12°47'55" WEST 366.01 FEET; THENCE, SOUTH 8°26'22" EAST TO A POINT IN THE
SOUTHERLY LINE OF SAID LOT 3, AND THE POINT OF ENDING.
Exhibit “B”
License AREA Map
Prepared by C3 Civil Engineering dated, July 18, 2023
Behind this sheet